Yesterday, Federal District Judge Leslie Kobayashi signed an Order officially ending the federal lawsuit Hawaiian Kingdom v. Biden. Attorney General Dexter Ka‘iama, representing the Hawaiian Kingdom by its Council of Regency, filed the notice of withdrawal on November 28, 2022, and yesterday was the Order. The federal lawsuit was initiated on May 20, 2021, and spanned for nineteen months. Here is the backstory of the federal lawsuit and its significance in obtaining evidence for the war crime of usurpation of sovereignty during military occupation.

The objective for the filing of the lawsuit was to seek an order from the court to compel the United States, the State of Hawai‘i and the Counties to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom as an occupied State. The lawsuit also sought from the court an order to halt the imposition of American municipal laws because it is the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of legislative and administrative measures of the occupying State.

But before the federal court could rule on the complaint, the Hawaiian Kingdom requested the court to transform from an Article III Court into an Article II Occupation Court, since the court is operating within the territory of the Hawaiian Kingdom and not within the territory of the United States. Article III Courts are federal courts that operate within the territory of the United States by judicial authority under Article III of the U.S. Constitution, whereas Article II Occupation Courts are federal courts that are established under the executive authority President under Article II of the U.S. Constitution in territories that are occupied by the United States military.  According to Professor Bederman, there are twelve instances in the history of the United States where Article II Occupation Courts were established during the Mexican War, the Civil War, the Spanish-American War, and the Second World War.

An amicus brief or friend of the court brief was filed by the International Association of Democratic Lawyers, the National Lawyer Guild, and the Water Protector Legal Collective on October 6, 2021, to help explain to the court why it was obligated to transform into an Article II Occupation Court. The Court pondered on this issue for five months.

Then on March 3, 2022, District Judge Kobayashi issued an Order granting the dismissal of Sweden’s Honorary Consul Anders Nervell from the lawsuit. In the Order, and without providing any evidence that the Hawaiian Kingdom no longer exists under international law, she stated that she will not transform into an Article II Occupation Court. Instead, Judge Kobayashi justified her decision on prior court decisions that provided no evidence of the Hawaiian Kingdom’s demise under the rules of international law. American court decisions, like American laws and administrative measures, constitute the war crime of usurpation of sovereignty during military occupation. In other words, Judge Kobayashi knowingly committed the war crime.

The Hawaiian Kingdom attempted to address the error of Judge Kobayashi but to no avail. She laid the path for the court and the defendants to commit the war crime of usurpation of sovereignty during military occupation and deprivation of fair and regular trial. The Hawaiian Kingdom would then use the proceedings to get evidence that the defendants and the court knowingly imposed American legislative and administrative measures. The elements for the war crime of usurpation of sovereignty during military occupation are:

1. The perpetrator(s) imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.

2. The perpetrator(s) was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.

3. Their conduct took place in the context of and was associated with a military occupation

4. The perpetrators were aware of factual circumstance that established the existence of the military occupation.

The third and fourth elements refer to the mens rea or the criminal intent requirement. With respect to these last two elements:

1. There is no requirement for a legal evaluation by the perpetrator as to the existence of the military occupation.

2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of existence of the military occupation.

3. There is only a requirement for the awareness of the factual circumstances that established the existence of a military occupation.

Later that month, on March 22, 2022, H.E. Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim, delivered an oral statement to the United Nations Human Rights Council (HRC) bringing attention of the war crime of usurpation of sovereignty before the 47 countries that are member States of the HRC, which included the United States. Here is the message:

None of the 47 member States of the HRC protested, or objected to the oral statement of war crimes being committed in the Hawaiian Kingdom by the United States. This is important because under international law, according to Professor Antunes, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” In other words, silence means agreement.

This oral statement would have the effect of shifting accountability from the U.S. courts to the Royal Commission of Inquiry (RCI). The RCI’s mandate is “to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

The RCI will focus on senior leadership of the United States, the State of Hawai‘i and the Counties. In mid-November of 2022, the RCI published its first war criminal reports of the senior leadership that were also named defendants in Hawaiian Kingdom v. Biden. The evidence of these perpetrators’ mens rea was by their own admissions in pleadings filed with the federal court.

There is no requirement for a “legal evaluation” or agreement that Hawai‘i is under a military occupation but rather only the awareness of the “factual circumstance that established the existence of the military occupation.” The amended complaint and the Hawaiian Kingdom’s own filed pleadings provided the factual circumstances of the American military occupation and neither the defendants nor the judges refuted or objected to these facts or provided any evidence that the Hawaiian Kingdom is no longer a sovereign and independent State under international law. Silence under international law means agreement.

Since the establishment of the International Criminal Court (ICC) there has been major developments in the national criminal laws of the 123 States that signed the ICC’s founding document, the Rome Statute. Article I of the Rome Statute states:

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Complementary jurisdiction means that the national courts of these States are the first to deal with international crimes. This is because States, not the ICC, already have national criminal justice systems in operation and are capable of dealing with perpetrators who commit international crimes. The ICC deals only with cases under limited circumstances and has been the cause of much criticism.

Usurpation of sovereignty during military occupation has not only victimized the civilian population in the Hawaiian Islands for over a century, but it has also victimized the civilians of other countries that have visited the islands since 1898 who were unlawfully subjected to American municipal laws and administrative measures. These include State of Hawai‘i sales tax on goods purchased in the islands but also taxes placed exclusively on tourists’ accommodations collected by the State of Hawai‘i and the Counties. The collection of these taxes from tourists constitute the war crime of pillaging.

The Counties have recently added 3% surcharges to the State of Hawai‘i’s 10.25% transient accommodations tax. Added with the State of Hawai‘i’s general excise tax of 4% in addition to the 0.5% County general excise tax surcharges, civilians who are visiting the islands will be paying a total of 17.75% to the occupying power. In addition, those civilians of foreign countries doing business in the Hawaiian Islands are also subjected to paying American duties on goods that are imported to the United States destined to Hawai‘i. These duty rates are collected by the United States according to the United States Tariff Act of 1930, as amended, and the Trade Agreements Act of 1979.

Under national criminal jurisdictions, States of these tourists would have authority to arrest and prosecute under passive personality jurisdiction. The passive personality principle provides countries with jurisdiction for crimes committed against their nationals while they were abroad in the Hawaiian Islands. This type of jurisdiction has more teeth as opposed to universal jurisdiction that allows States to prosecute war criminals who committed crimes outside of the territory of the State and where the perpetrator or victim is not a national of the State. The drawback on universal jurisdiction is that it can only be triggered when the perpetrator is in the territory of the prosecuting State. Passive personality jurisdiction, on the other hand, provides for immediate action to apply for extradition arrest warrants to be issued by the prosecuting State where the perpetrators remain outside of the prosecuting State’s territory.

The RCI will focus its attention on the various national criminal jurisdictions in order to seek arrests warrants for the subjects of the RCI’s war criminal reports because war crimes cannot continue to take place in Hawai‘i with impunity. War crimes have no statute of limitations and prosecution can follow a perpetrator until his elderly years.